Pit bull legislation falls short

md-pit-bull-perna

Algerina Perna, Baltimore Sun

Algerina Perna, Baltimore Sun

Kevin A. Dunne

As a result of my representation of a 10-year-old boy who was brutally mauled by a neighbor's pit bull, I have recently been thrust into a heated and, at times, toxic public debate concerning the dangerousness of certain breeds of dogs. This debate has been particularly frustrating because the two sides do not actually disagree about the important parts. If we as a society are interested in preventing serious injuries or death and adequately compensating victims, the dialogue has to change.

On April 28, 2007, Dominic Solesky was attacked by a neighbor's pit bull behind his family's East Towson home. The dog bit Dominic many times, but finally bit deeply into Dominic's groin and severed his femoral artery. Ordinarily, such an injury is fatal within minutes. If not for the heroic efforts of neighbors, EMT responders and Johns Hopkins physicians, Dominic would not have survived the attack. Instead, Dominic spent 17 days at the pediatric ICU and endured a year of rehabilitation for his injuries. Dominic's story is one of too many in the United States, in which the tremendous personal and financial costs are imposed on innocent families as a result of dog attacks.

The Solesky family hired me to represent them, and I brought suit against the owner of the pit bull and the owner's landlord. The pit bull's owner promptly filed for bankruptcy, and the suit went forward against only the landlord. The landlord's insurance carrier hired attorneys who initially tried to blame Dominic for the attack. When this proved unsuccessful, the landlord sought protection under a Maryland rule that required a victim to prove that the landlord or owner had actual knowledge of the viciousness of a dog before the landlord could be held liable. The landlord had explicitly permitted two pit bulls on the leased property and had attempted in that lease to disclaim any responsibility for attacks by the pit bulls. If the landlord had been successful, the Soleskys would have no recovery.

The case went before the Maryland Court of Appeals, and on April 26, that court issued an opinion changing the Maryland common law. If a pit bull attacks and injures, owners (and landlords) are responsible. In the law, this is called strict liability.

Because the opinion concerned only pit bulls and not all breeds of dogs, it unleashed a firestorm of public debate. Many Marylanders took issue with the court's opinion, which they viewed as "discrimination." Some even likened it to racism (an argument that really trivializes race relations in this country). From my perspective, these arguments fall flat. My primary concern remains, as I believe it should remain for everyone, that catastrophic accidents should be avoided and that victims should be compensated for their injuries.

Others took issue with the statistical data on which the decision was based. Studies have shown that pit bull dogs are responsible for 60 percent of U.S. fatalities caused by dogs. The dangerousness of this breed was recently confirmed by University of Texas trauma physicians, Drs. John Bini and Stephen Cohn, in Annals of Surgery. They concluded that pit bulls present an unacceptable actuarial risk for humans and are, in fact, an inherently dangerous breed. A certain segment of the population will simply not be convinced of this until they observe it themselves. (Google the name "Darla Napora" for a particularly sad and gruesome example.)

Strangely, however, the two sides of this debate largely do not disagree when the issue is framed in terms of personal responsibility. No one in the debate seems to oppose a rule extending strict liability to all dog owners. From a victims' rights perspective, that would be a reasonable outcome.

But the General Assembly appears poised to go a step farther. The legislation expected to be considered during this week's special General Assembly session would extend the strict liability rule to all dog owners but not landlords.

That would not protect Dominic Solesky, as the dog's owner can avoid liability by filing bankruptcy. Victims like the Solesky family might likewise be driven into bankruptcy as a result of medical bills. If landlords and their insurers are taken off the hook, those who could actually be in a position to prevent these attacks and to pay the victims' medical bills will be out of the picture. Remember, in Dominic's case, we had a landlord who knew that the pit bulls were being kept in a residential neighborhood and self-servingly tried in the lease to push responsibility for attacks onto her tenants.

I maintain my belief that victims' rights should be paramount. This debate should never have been about the dogs. My clients did not bring suit because they hate pit bulls. They brought suit because their son was nearly killed, and someone should be held responsible for that. I can only hope that their effort is vindicated and out of this debate a law emerges that ensures justice is done for the victims.

Kevin A. Dunne is a shareholder at Ober|Kaler in Baltimore and represents the Soleskys. His email is kadunne@ober.com.